The torrent of violence that Syrian President Bashar al-Assad and his operatives have rained down on his own people since 2011 — widespread kidnappings, torture, barrel-bombings and chemical weapons attacks — have led to mournful discussions of the dim prospects that Assad will ever be brought to trial for his atrocities. Yet the truth is that the US, and its stance toward the International Criminal Court at The Hague, have helped create many of the impediments to Assad’s prosecution.
The ICC, a permanent war-crimes tribunal, was established through negotiations among most United Nations members in the late 1990s, with the US playing a leading role. Since the Nuremberg trials after World War II, a global consensus had emerged that public trials of war-crimes charges and punishment of those responsible were indispensable to creating a lasting peace in a conflict zone, because dispassionate justice allows survivors to move forward without nursing grievances for generations about horrors that have gone unaddressed.
By the end of 2000, the US and 138 nations had signed the international treaty, called the Rome Statute, that created the court. Then in May 2002, the George W. Bush administration announced that it was “unsigning” the treaty and renouncing America’s obligations.
Many arguments were marshaled against membership, some of them understandable. Perhaps the most cogent objection is that no nation is more likely than the U.S. to be drawn into a peacekeeping role around the world. We would be less likely to do so if our soldiers had to bear the risk of a politically inspired prosecution in front of a criminal court thousands of miles from our shores, with procedures very different than our own.
As an exclamation point, Congress in 2002 passed the American Service-Members Protection Act, which authorized the president to order military action to free any armed forces member called to answer before the ICC. The move was ridiculed in Western Europe as “The Hague Invasion Act,” but the US continued to put diplomatic pressure on other nations, including Iraq, where American troops were fighting, not to participate in the Court.
The American turnaround has helped hobble the ICC. Renegade nations such as China, which failed to participate from the outset, have been able to avoid pressure from the global community by noting the US stance. Far more important, America’s example made it easier for other nations that had signed the Rome Statute also ultimately to fail to ratify it. Many are countries whose actions have often been alleged to violate international law: Iran, Israel, Russia and, most importantly, Syria.
As a result, the ICC has no jurisdiction over Syria and Assad. The UN Security Council could still refer the matter to the international court, but Syria’s ally, Russia, holds veto power there and has so far hindered efforts to call Assad and others to account. The UN has empowered two different bodies to gather evidence about the atrocities in Syria, but they have no forum in which to present it and Assad has said he and his administration “don’t care” about the UN efforts.
If US refusal to ratify the Rome Treaty were truly in American national interest, it could be excused, even if it provided shelter to someone like Assad. But Washington’s reluctance rests on a variety of assumptions that don’t stand up to scrutiny. Foreign prosecutors and investigators are never going to be crawling all over the US trying to imprison our soldiers. ICC jurisdiction is complementary, meaning it does not violate our sovereignty by supplanting our own justice system. The results of a good faith investigation by national authorities is conclusive on the ICC. The court acts only when the nation in question has refused to.
It is unimaginable that serious war-crimes charges against American troops would go uninvestigated by the Pentagon, once they came to light. Consider the convulsive response to the actions by our soldiers at the Baghdad prison, Abu Ghraib. Furthermore, if membership in the ICC sharpened the need to investigate and, when called for, to prosecute Americans in order to forestall action by the court, that would be a positive development, with our treaty obligations serving as a powerful antidote to the inclination of the military, like other institutions, to protect its own and sweep things under the rug.
Finally, the brute realities are that if the ICC ever mounted a prosecution against Americans that we regarded as biased or corrupt, we could withdraw from the treaty then. No nation on earth is strong enough to force Washington to remain. But the US would be standing on firmer moral ground by voicing principled objections in a particular case, rather than adhering to our current position, which is that Americans can commit crimes against humanity without our government being willing to formally guarantee a response.
In the meantime, the efforts by the US and other nations to undermine the Court have significantly weakened it. Stuck trying to preserve a fragile constituency, the ICC has become bogged down in a rigorous procedural regularity, because its only defense to charges of political motivation is to demonstrate a rigid adherence to its own rules.
That has meant that investigations drag on for years, while the lack of support from the US and other powerful nations like Russia and China has often left the court toothless in the face of the resistance. Russia, for example, has been under investigation since 2008 for its actions while invading Georgia.
In 13 years, the ICC has charged a mere 33 individuals, convicting only eight. Charges have failed against 10 defendants, with the other cases ongoing, or suspended because the defendants are fugitives or dead. Worse, all 33 defendants have been from Africa, which has led the court to be derided on that continent as a tool of Western imperialism, even though the conduct charged in these cases is appalling and could never be ignored by any responsible prosecutor.
Yet the US can hardly criticize the court for an ineffectiveness that we have done our best to create. Perhaps the most galling aspect of America’s refusal to participate is that it undermines our own policies and our frequent claims to be the world’s moral leader.